Roman Marriage: 'Iusti Coniuges' from the Time of Cicero to the Time of Ulpian.
It is the religious aspect that is most often underrated and neglected, even by Treggiari. Like every important event in Roman public and private life, nuptiae had to be conducted auspicato: "Like the veil, the auspices were part of a proper formal wedding, signifying the public approval of the couple's friends" (164). This misses the point: in ritual it was the opinion of the gods that counted, not that of friends. On the morning of the wedding, the auspices, private diviners, inquired after the will of the gods. This ceremony is amply attested in the sources, well into the imperial period (Rossbach, Ehe, 293-307); it should not be confused with consultation of the exta, the entrails of the sacrificial victims. (M. Humbert, Le remariage a Rome [Milan, 1972] 12-13, adduced by Treggiari, speaks of "le sacrifice auspicial," a terminological monstrosity.) Cicero complains (Div. 1.28) that nuptiarum auspices . . . re omissa nomen tantum tenent. His enunciation (and its misleading paraphrase by Valerius Maximus, 2.1.1) is often invoked, rarely analyzed, never understood. Cicero does not say that the auspicia ceased to be taken; he rather intimates that they were consulted in an improper and perfunctory way. The passage is to be read in conjunction with other similar strictures, especially the complaint that divination from freely flying birds was replaced by auspicium coactum et expressum from the feeding of pulli kept hungry in a cage (Div. 2.72-73; of. 1.27; N.D. 2.9; Leg. 2.33).
The procedure of taking the auspices (auspicia impetrativa) consisted of a question addressed to a deity, and the deity's reply. What question did the officiating auspex ask? Treggiari does not pose this question, but Rossbach (294) did: "ob [die Gotter] der Ehe geneigt waren oder nicht." Not so. It was a well-established tenet of augural doctrine that the validity of an auspical sign pertained to one day only (cf. P. Catalano, Contributi allo studio del diritto augurale [Turin, 1961] 42-45; J. Linderski, ANRW 2.16.3  2295-96). Consequently the deity could not be asked, and was not asked, to give its approval to the marriage as such but solely to the day selected for the ceremony. During the ceremony itself unfavorable omens could appear. If disregarded they would render the marriage ritually flawed and unlucky, though legally it remained valid (cf. Varro LL 6.30, on vitiosus magistratus). Thunder, in particular, disrupted nuptiae (as also the popular assemblies; see Cic. Div. 2.42 and Pease ad loc.; Servius and Serv. auctus, ad Aen. 4.161, 166-67). Its occurrence was especially feared at confarreationes: cum fuissent iuncti (sc. Aeneas and Dido), scirent tonuisse: quae res dirimit confarreationes (Serv. auct. ad Aen. 4.339). The wife of Flamen Dialis, the flaminica, in one of her ritual aspects, was regarded as a perpetual bride, nova nupta (cf. N. Boels-Janssen, REL 67  119-21). This explains why flaminica quotiens tonitrua audisset feriata erat donec placasset deos (Macr. Sat. 1.16.8).
Of the concept of manus and the forms of its acquisition Treggiari presents a succinct discussion (16-36). Her remarks on the ritual of confarreatio can be supplemented by J. Linderski, in Social Struggles in Archaic Rome, edited by K. A. Raaflaub (Berkeley, 1986) 244-61 (cf. L. Sancho, RIDA 37  347-83); ZRG 101 (1984) 301-11 (on the phrase usu, farre, coemptione); and in Historia Testis: Melanges a T. Zawadzki (Fribourg, 1989) 211-14 (on the inscription ILS 1455 from Antium, recording a sacerdos confarreationum et diffarreationum).
According to Roman antiquarians, two high priests officiated at the confarreatio, the Pontifex Maximus and the Flumen Dialis (Serv. auct. Georg. 1.31). The office of Flumen Dialis was vacant between 75 and 12 B.C. Some scholars conclude either that no confarreations could have taken place in that period or that the presence of the state priests at the ceremony was an antiquarian figment: so, most forcefully and most recently, G. Radke, Gymnasium 96 (1989) 209-16. Treggiari herself hesitates (23). Radke's argument is spurious: when the Flamen Dialis was incapacitated, his cultic functions could be performed by pontiffs (Tac. Ann. 3.58: saepe pontifices sacra Dialia fecisse), and likewise in the stead of the Pontifex Maximus any pontiff could officiate (Cic. Har. resp. 21; Att. 4.2.4).
What comes together may come asunder. Roman divorce was a relatively easy affair: to its terminology and procedure (which became more formal during the course of the Empire), and also to its causes, effects, and frequency Treggiari devotes enlightened and enlightening pages (435-82, and 516-19, a list of attested divorces). In Rome marriage and divorce were free and private; the state did not ratify marriages, and it did not grant divorces: "We seem to be approaching once more the original Roman custom" (505). Indeed in the contemporary Western world large chunks of repressive medieval dogma have been removed, many in the law, and many more in the actual life of the society; to protect its share of the market, even the Vatican has been forced to grant decrees of nullity in unprecedented numbers.
The previously reigning book in English on matrimonium, P. E. Corbett's Roman Law of Marriage (Oxford, 1930), was relentlessly legalistic; Treggiari mixes law, philosophy, and society. She treats of "ideals and reality in the relationship of husband and wife"; the chapters on Greek philosophical background, theories of marriage, coniugalis amor, and sexual relations are a treat to read (183-319). It is thus perhaps surprising that in her bibliography (encompassing twenty pages) one searches in vain for two epochal works: La conception du mariage d'apres les juristes romains by Edoardo Volterra (Padua, 1940) and La cite antique by N. D. Fustel de Coulanges (Paris, 1864).
Volterra established once and forever that according to Roman jurists, Roman marriage was based on "continuing consent": when the reciprocal will to live as husband and wife disappeared, the marriage automatically ceased to exist. The formula of divorce was only an outward manifestation of that fact. (Treggiari, quoting a later work of Volterra, very sensibly adopts his view.) On the other hand modern Western marriage is based (under the influence of Church dogma) on the concept of "initial consent"; hence the need for formal divorce or (even better) annulment proceedings. The impulse to rewrite history is always strong. The dissertation of J. Huber, Der Ehekonsens im romischen Recht (Analecta Gregoriana 204, Rome, 1977), offers an obscure but instructive footnote. (Cf. also the debate between O. Robleda, E. Volterra, C. Castello, and Huber in La definizione essenziale giuridica del matrimonio [Rome, 1980] 29-87; Treggiari  adduces Huber's monograph as an example of simple scholarly disagreement with Volterra, but that obscures the ideological context and premise of Huber's book). Huber strains to establish, not unexpectedly, that in Roman marriage consent "stets initial ist, so dass die Frage des Konsensenswandels verneint werden muss" (163) - the principle of canon law was already present in the Roman law! Deprived of its illustrious precedent, modernity would thus stand doubly condemned.
In his analysis of "Nah- und Treuverhaltnisse" (Die Nobilitat der romischen Republik [Leipzig, 1912] 49-50) M. Gelzer drew his inspiration from Fustel de Coulanges' Origines du systeme feodal (Paris 1890); it is a pity that students of Roman matrimonium neglect The Ancient City. For nobody stressed better the religious character of the Roman family and the pervasive social consequences of the agnatic and pattilineal system. It was, and still is, the cornerstone of the subordination of women, whether daughters or wives.
JERZY LINDERSKI UNIVERSITY OF NORTH CAROLINA, CHAPEL HILL
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|Publication:||American Journal of Philology|
|Article Type:||Book Review|
|Date:||Mar 22, 1995|
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